Trustee Process, Interrogatories. Practice, Civil, Interrogatories.
The practice as to interrogatories to those summoned as trustees in trustee process is governed by R. L. c. 189, §§ 9-18, and not by St. 1913, c. 815, relating to the interrogating of an adverse party in an action at law or a suit in equity.
In an action begun by trustee process in which a savings bank is alleged to be a trustee, the plaintiff is entitled to have the trustee answer interrogatories propounded to determine whether the defendant four years and eight months before the date of the service of the writ had money on deposit with the alleged trustee either in his own name or in the name of some one else, and, if so, when it was withdrawn.
If a trustee summoned by trustee process, upon being ordered to answer certain interrogatories propounded to him by the plaintiff, answers one of them but leaves unanswered some of them which are germane to the issues between him and the plaintiff, it is proper to allow a motion that he be defaulted and adjudged a trustee for failure to answer the interrogatories.
RUGG, C. J.
Eleven interrogatories were propounded to the trustee. It answered two and refused to answer the other nine. On motion and after hearing an order was entered by the court directing that the remaining interrogatories be answered on or before a certain date. The trustee then answered one further interrogatory and refused to answer the others. It was thereafter defaulted and adjudged a trustee for its failure to answer these interrogatories.
The practice as to interrogatories to those summoned as trustees in actions at law is governed by R. L. c. 189, §§ 9 to 18, and not by St. 1913, c. 815, enacted in substitution for R. L. c. 173, §§ 57 to 67, and c. 159, §§ 15, 16. A trustee is not ordinarily an adversary party and cannot be subjected to cross-examination. But he may be examined somewhat in detail in order to elicit facts tending to charge him.
Some at least of the interrogatories propounded in the case at bar were pertinent as calculated to show that under the cloak of the name of another the principal defendant had money on deposit with the trustee. It was germane to this line of inquiry to extend the questions to a period of time somewhat before the service of the writ. It is not necessary to determine whether all the interrogatories were competent which the trustee refused to answer. Those relating to the previous state of the account of the principal defendant certainly were, and the trustee's absolute refusal to answer covered these. While it is true that a trustee, having no interest in the action between the principal parties, is entitled to the protection of the court to the end that he is put to no excessive expense and trouble, Cavanaugh v. Merrimac Hat Co. 213 Mass. 384, yet he may be interrogated to a reasonable extent in order to ascertain the true state of the account between him and the principal defendant. The case is covered by MacAusland v. Taylor, 220 Mass. 265, and cases there collected.
Order, charging trustee affirmed.